Mitchell, Allan v R; Mitchell, Paul v R; Mitchell, Michael v R [2014] NSWCCA 212

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Mitchell, Allan v R; Mitchell, Paul v R; Mitchell, Michael v R [2014] NSWCCA 212 Hearing dates: 30 July 2014 Decision date: 03 October 2014 Before: Bathurst CJ at [1]; Adams J at [2]; R A Hulme J at [3] Decision: Michael Mitchell 1. Leave to appeal against sentence granted. 2. Appeal against sentence allowed. 3. Sentences imposed in the District Court on 8 August 2013 quashed. In lieu, Michael Robert Mitchell is sentenced as follows: Larceny at Adaminaby (Sequence 4): sentenced to a fixed term of imprisonment for 5 months commencing 12 January 2013. Aggravated break, enter and steal at Adaminaby (Sequence 3): sentenced to imprisonment comprising a non-parole period of 1 year 11 months commencing 12 May 2013 and a balance of the term of the sentence of 8 months expiring 11 December 2015. Aggravated break, enter and steal at Cabramurra (Sequence 1): sentenced to imprisonment comprising a non-parole period of 1 year 7 months commencing 12 September 2013 and a balance of the term of the sentence of 1 year 5 months expiring 11 September 2016. The offender is to be released on parole when the final non-parole period expires on 11 April 2015. Paul Mitchell 1. Leave to appeal against sentence granted. 2. Appeal against sentence allowed. 3. Sentences imposed in the District Court on 8 August 2013 quashed. In lieu, Paul Christopher Mitchell is sentenced as follows: Break, enter and steal at Tumut (Sequence 4): sentenced to a fixed term of imprisonment for 2 years commencing 12 January 2013. Larceny at Adaminaby (Sequence 5): sentenced to a fixed term of imprisonment for 5 months commencing 12 May 2013. Aggravated break, enter and steal at Adaminaby (Sequence 3): sentenced to imprisonment comprising a non-parole period of 1 year 10 months commencing 12 September 2013 and a balance of the term of the sentence of 9 months expiring on 11 April 2016. Aggravated break, enter and steal at Cabramurra (Sequence 1): sentenced to imprisonment comprising a non-parole period 1 year 6 months commencing 12 January 2014 and a balance of the term of the sentence of 1 year 6 months expiring on 11 January 2017. The offender is to be released on parole when the final non-parole period expires on 11 July 2015. Allan Mitchell 1. Leave to appeal against sentence granted. 2. Appeal against sentence allowed. 3. Sentences imposed in the District Court on 8 August 2013 quashed. In lieu, Allan James Mitchell is sentenced as follows: Larceny at Adaminaby (Sequence 4): sentenced to a fixed term of imprisonment for 6 months commencing 12 March 2013. Aggravated break, enter and steal at Adaminaby (Sequence 3): sentenced to imprisonment comprising a non-parole period of 2 years 3 months commencing 12 August 2013 and a balance of the term of the sentence of 9 months expiring 11 August 2016. Aggravated break, enter and steal at Cabramurra (Sequence 1): sentenced to imprisonment comprising a non-parole period of 1 year 11 months commencing 12 January 2014 and a balance of the term of the sentence of 1 year 5 months expiring 11 May 2017. The offender is to be released on parole when the final non-parole period expires on 11 December 2015. Catchwords: CRIMINAL LAW - appeal against sentence - multiple offences and offenders- erroneous Crown concession that reduction in earlier, related sentences warranted intervention - principal consideration is degree of accumulation, not concurrence - no lesser degree of accumulation warranted - no error in referring to criminal record as "aggravating circumstance" - sentences for aggravated break and enter offences manifestly excessive - lower objective seriousness than found by trial judge - commercial premises rather than private residential homes - stolen property unlikely to have had sentimental value - serious indictable offence and circumstance of aggravation both of limited seriousness - sentences quashed and offenders resentenced Legislation Cited: Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Inclosed Lands Protection Act 1901 (NSW) Cases Cited: Butters v R [2010] NSWCCA 1 Choi v R [2007] NSWCCA 150 Mill v The Queen [1988] HCA 70; 166 CLR 59 Mitchell v R; Mitchell v R [2013] NSWCCA 318 Mitchell v R [2014] NSWCCA 63 Pearce v The Queen [1998] HCA 57; 194 CLR 610 R v Fidow [2004] NSWCCA 172 R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566 R v MMK [2006] NSWCCA 272; 164 A Crim R 481 R v Tuuta [2014] NSWCCA 40 Category: Principal judgment Parties: Allan James Mitchell (Applicant) Paul Christopher Mitchell (Applicant) Michael Robert Mitchell (Applicant) Regina (Respondent) Representation: Counsel: Mr M Ramage QC (Allan Mitchell) Ms S Kluss (Paul Mitchell) Mr C Smith (Michael Mitchell) Ms N Adams (Crown) Solicitors: The Law Company P Schmidt Legal Aid NSW Solicitor for Public Prosecutions File Number(s): 2012/293296; 2012/293395; 2012/293295 Decision under appeal Jurisdiction: 9101 Date of Decision: 2013-08-08 00:00:00 Before: King SC DCJ File Number(s): 2012/293296; 2012/293395; 2012/293295